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Studio does content-ID takedown of my Hitler video about takedowns

In a bizarre twist of life imitating art that may be too "meta" for your brain, Constantin Films, the producer of the war movie "Downfall" has caused the takedown of my video which was put up to criticise their excessive use of takedowns.

Starting a few years ago, people started taking a clip from Downfall where Hitler goes on a rampage, and adding fake English subtitles to produce parodies on various subjects. Some were very funny and hundreds of different ones were made. Some were even made about how many parodies there were. The German studio, Constantin, did some DCMA takedowns on many of these videos.

Not to spoil things too much, but the video also makes reference to an alternate way you can get something pulled off YouTube. Studios are able to submit audio and video clips to YouTube which are "fingerprinted." YouTube then checks all uploaded videos to see if they match the audio or video of some allegedly copyrighted work. When they match, YouTube removes the video. That's what I have Hitler decide to do instead of more DMCA takedowns, and lo, Constantin actually ordered this, and most, though not all of the Downfall parodies are now gone from YouTube. Including mine.

Now I am sure people will debate the extent to which some of the parodies count as "fair use" under the law. But in my view, my video is about as good an example of a parody fair use as you're going to see. It uses the clip to criticise the very producers of the clip and the takedown process. The fair use exemption to copyright infringement claims was created, in large part, to assure that copyright holders didn't use copyright law to censor free speech. If you want to criticise content or a content creator -- an important free speech right -- often the best way to do that will make use of the content in question. But the lawmakers knew you would rarely get permission to use copyrighted works to make fun of them, and wanted to make sure critical views were not stifled.
We thus see the problem with both the DMCA takedown process and YouTube's "Content ID" fingerprinting process. It's a shotgun rather than a scalpel, and censors protected speech in the name of protecting copyrights. YouTube is a private company (and, in the interests of disclosure I have a friendly and business relationship with Google, something I am much prouder of now that they are not censoring in China) and so it has the right to decide what videos will appear on their site for whatever reasons they choose. However, there are still good and bad ways to do this.

YouTube does allow uploaders to file a dispute over a Content ID takedown, and I did file a dispute. Upon filing the dispute, it appears the video became immediately playable (though embedding was disabled until I turned it back on.) The uploader is not told this, however, as the YouTube status page still reports that the "dispute is still awaiting a response from Constantin Films" and that the video is "blocked worldwide." We will see how long it takes for Constantin to respond. They don't make the dispute form easy to find, and in fact I got no notice via e-mail that I can see to tell me of the takedown. When I visited the page logged in to YouTube, it still showed me the video even though nobody else could see it, and uploaders have to work to learn that their vids are gone. Due to the dispute filing it appears you can now play the video directly on YouTube. The approach of immediate re-enabling is the right one (though the scattershot takedown itself is more troubling.)

Brad, for what it’s worth, I am able to watch your video. Hopefully YouTube will reenable your video fully: as you’ve gone to a lot of trouble to legally obtain the source material, you should not be penalized for doing what is perfectly legal. Parody has long been established as a form of fair use and one hopes YouTube will recognize US law.

"That would certainly be a better approach for YouTube to take — re-enable the video immediately upon dispute, and let the copyright owner re-dispute or file an actual DMCA takedown later if they want to."

This is in fact the approach YT takes. It may just be some database lag causing it not to be fully restored/updated yet.

imo, youtube is becoming like a dummy corporation for music and movie industry, i don't like it anymore, will be hosting my videos elsewhere....... entertainment industry do not seem to understand the "internet age"....

...that were this not a video created by a board member and former chairman of the EFF, who was immediately and very publicly decrying its removal on his blog, a mere content takedown dispute would not have been attended to so quickly (and indeed, the chances of the video actually returning would have been slim to none).

The entire system is stacked so far in favor of big businesses these days as to basically eliminate fair use rights, at least for anybody not able to generate vast reams of publicity by themselves.

here in Canada. Hopefully people will get their parodies back up simply by filing a dispute. I have a video on my own YouTube channel that is still in dispute a year after I filed a counter-claim, and I have permission from the label and the songwriter to use it! Their system is so screwed up...

And for one, I'm glad to see someone eloquently standing up for Fair Use rights and their own creative expression. So many of these disputes dissolve into bickering and ridiculousness, and it tarnishes the actual subject of debate. I applaud your efforts.

I created a Downfall parody (Barack's Downfall) which was recently taken down after 172,000 views. I have filed a dispute notice saying it is a parody and noting that I refused to take any compensation in the form of ad revenues.

If my video is clearly fair use then do I have a case to sue YouTube and/or Constantin Films? Is there a possibility of a class action suit, or even the threat of such an action?

EFF encourages YouTube to take a position more protective of fair use, but it is in the end, their website, and they don't have to host anything they don't feel like hosting, any more than I have to host your videos on my website. So you would not get fair with a suit against them. Against Constantin? There is more potential there in that they used youtube's system to take down videos they had no specific right to take down, but youtube gave them that power, and it is alas, youtube's to give. Youtube's only risk is if they get ruled as exercising editorial control over videos, they could become liable for all videos, but they would argue they are not doing that, but rather building a tool to let others exercise it. (for example a site that lets users vote something down is not exercising editorial control.)

"Downfall" is a great movie, one of the better ones depicting a few pretty tense days in the end of WWII. Bruno Ganz's performance is outstanding and that man should have received an Oscar!

Constantin Films likely do not recognize all the goodwill they've gotten for this movie based on all these spoofs found all over the web. Many of us would never ever had heard of this movie, and would totally have missed it, had it not been for the proliferation of this clip.

In certain cases, I do understand a copyright holder's hunt for "copies" that try to benefit on other's artistic work w/o providing anything in return. This is certainly not such a case, and not being a legal expert, I just think it is sad that Constantin Films and its legal eagles have taken a "prohibitive" stance, when they could have gotten so much good publicity out of this for years to come.

BTW, if you have not seen the film, see it and especially the interview with Bruno Ganz in the DVD extras. Pretty powerful stuff.

I've seen several videos today by people who make regular Downfall parodies saying that as of the 28th, Constantine has begun issuing DMCA takedown notices to everyone who has filed a dispute for a Downfall parody. Do you know anything about this?